Bowe agt. Campbell.

sheriff is entitled on executing process are regulated by 2 Revised Statutes, 644, and in so far as this particular subject is concerned, the language of the statute is as follows:

"For serving an attachment for the payment of money, or an execution for the collection of money * *for collecting the sum of two hundred and fifty dollars or less, two cents and five mills per dollar, and for every dollar collected more than two hundred and fifty, one cent and two and half mills."

The sum, therefore, allowed to the sheriff for poundage is "for every dollar collected." Poundage in practice is the amount allowed to the sheriff or other officer for commissions on the money made by virtue of an execution (Bouvier's Law Dictionary-subject, “Poundage").

It is quite clear that the sheriff has not yet collected any money, and, although he has taken and committed MacDonald, he still detains him under the execution, and he cannot discharge him on receiving anything but an actual payment of the judgment in money (Codwise agt. Field, 9 Johns., 263; 4 Cowen R., 553).

If the arrest and imprisonment of the defendant was the sole purpose of the action in which the judgment was obtained, and upon which the execution was issued, the claim to fees might be better supported, as that has been attained.

The object of the action was to collect money, and the execution was issued to coerce its payment. The means should not be substituted for the end. This is shown by the execution itself, for by it the officer was commanded to commit MacDonald to the jail "until he should pay the judgment, or be discharged according to law." The attorney, even, has no general authority to discharge the debtor without payment (Simonton agt. Barrett, 21 Wend., 362).

It is, however, urged by the counsel for the sheriff that the imprisonment of the debtor is a satisfaction of the judgment. But such imprisonment does not work an absolute satisfaction of the judgment. Although during the imprisonment proceedings upon the judgment are suspended, it still in fact remains VOL. LXIII 22

Bowe agt. Campbell.

unpaid. As is stated by ANDREWS, J., in Koenig agt. Steckel (58 N. Y., 476), "the judgment was not thereby absolutely extinguished, but the imprisonment barred the creditor from all other remedies for the collection of the debt while the debtor was in custody" (Utica Ins. Co. agt. Power, 3 Paige, 365).

Even in regard to a levy on personal property to an amount equal to the judgment, which was supposed to amount to a satisfaction of the judgment, BRONSON, J., in The People agt. Hopson (1 Denio, 574), says: If the broad ground has not been taken, it is time that it should be asserted, that a mere levy on personal property, without anything more, never amounts to a satisfaction of a judgment. So long as the property remains in legal custody, the other remedies of the creditor will be suspended." But a mere levy would not justify the sheriff in at once demanding, from the party or his attorney, poundage on the execution. That must be collected with the debt. As the sheriff has not as yet collected a single dollar, I do not see how he can, under the statute, reasonably demand poundage. When he has fully met all the exigencies of the execution, it will be time enough to determine the defendant's liability.

If MacDonald has means, and can command them, he will probably pay the judgment, and so end his imprisonment. If he has no property, he will probably take steps for his legal discharge, and when discharged the sheriff will have no further duty in the premises, in so far as MacDonald is concerned. In the case of Adams agt. Hopkins (supra), the judgment debtor was detained in custody until discharged under the act for the relief of debtors, and after that the question as to the sheriff's fees arose.

The case of Ryle agt. Falk (24 Hun, 255), cited by the plaintiff's counsel, does not support his present claim, but, I apprehend, is against it. DAVIS, P. J., in that case, says: "It seems to be well settled in this state that upon the arrest under a body execution the judgment is satisfied so long as

Bowe agt. Campbell.

the defendant continues in custody under arrest; and the sheriff is entitled to his poundage on the execution whenever the defendant is discharged by the payment of the judgment or under the act for the relief of debtors, or by the consent of plaintiff ;" and again," an absolute discharge of the defendant by satisfaction of the judgment, or by an unqualified direction of the plaintiff, would, undoubtedly, leave the plaintiff liable to the sheriff for his poundage upon the execution."

But it is urged, on the sheriff's behalf, that the whole risk of the safe custody of MacDonald rests upon him, and that, should the debtor escape, he would be liable for the amount of the judgment. That liability affords no just grounds for the interposition of the present claim for poundage. The liability of the sheriff in such case would rest upon his neglect of duty; and whatever damages the plaintiff, in the execution, may sustain on account of such negligence he would be entitled to recover. But should it appear in such an action that the imprisoned debtor has no means, and was insolvent, the recovery would be nominal only. The recovery against the sheriff would be limited to what the plaintiff had actually lost (Smith agt. Knapp, 30 N. Y., 581, 592; Russel agt. Turner, 7 Johns. R., 188).

In this view it is difficult to discover any valid reason for giving such a construction to the statute as will entitle the sheriff to poundage as though he had collected the amount for which the judgment was recovered, when it may turn out in the end that the defendant is insolvent or unable to pay. But I regard the subsequent clauses of the statute as fatal to the claim against the attorney, as the facts appear at present, for the statute further provides:

"That the fees here allowed for the service of an execution * * * shall be collected by virtue of such execution in the same manner as the sum therein directed to be paid."

That clearly means from the defendants in the execution. And, further, in treating of the fees of the sheriff in respect to such services, and in the same direction, it is provided that

Ryan agt. Wilson.

he may receive "for any person committed to prison, and every person discharged from prison, in civil cases, twentyfive cents for receiving and twenty-five cents for discharging, to be paid by the plaintiff in the process.'

It would be improper, and it is wholly unnecessary, to discuss the question of the liability of an attorney for the fees of the sheriff on process which he has issued when the fees have been earned. Adams agt. Hopkins disposes of that subject upon the facts and under the statutes then existing; and although the principle of that case was made a subject of comment in Campbell agt. Cothran (56 N. Y., 279), yet it was recognized as the law of this state. But it does not cover the present case, and from a consideration of the complaint in this action I cannot find that, under the statutes or under any case which has been cited by the learned counsel for the plaintiff, it states facts sufficient to justify any recovery against the defendant in this action, and there must be judgment for the defendant on the demurrer, with costs.

COURT OF APPEALS.

MARY ANN RYAN agt. PETER M. WILSON.

Negligence-Landlord and tenant — Liability of landlord who leases premises with the machinery contained therein, for an injury received by an employe of the tenant in coming in contact with the same.

The defendant was the owner of a building and leased it with the machinery it contained to one Little. The latter employed the plaintiff, who came in contact with the machinery and was injured:

Held, that the tenant took the premises as they were, and that the plaintiff going into his service at that place, took the risks of the situation. If any railings or other safeguards were required, it was the duty of the tenant who used the machinery to construct them.

Held, further, that the tenant and not the landlord, was responsible for the injury. The respective duties owing by landlord and tenant to third persons considered.

Decided, January, 1882.

Ryan agt. Wilson.

APPEAL from a judgment of the general term of the New York superior court, affirming a judgment, entered upon a verdict in favor of the defendant.

Tremain & Tyler, for appellant.

Ira D. Warren, for respondent.

DANFORTH, J.-The case seems a very clear one for the defendant. He owned the building in which the plaintiff was injured, but the room where the accident occurred had been rented to one Little, who was then in its possession as tenant. The plaintiff was in Little's employ. Steam power and the use of machinery were furnished by the defendant, but the plaintiff was not harmed while using it, or by its insufficiency for the purpose of which it was designed. She came in contact with it and was overcome. She did not approach it, or even come upon the premises at the express or implied invitation of the defendant, and therefore many of the numerous cases referred to by the learned counsel for the appellant have no application. It is said, however," that for the purpose for which this floor was to be used, and which the defendant knew it was to be used, and for which he received compensation for use of it, the defendant did not use the ordinary means of avoiding danger from the shaft to those engaged upon or visiting the premises," but it comes to this, that he did not surround the shaft with a guard, or prevent access to it by a railing or other obstacle. Upon what principle was he bound to do so? Because it is said "a man must take care that his property is so used or managed that other persons are not injured." This maxim does not touch the case. The premises were delivered to the tenant in a condition to serve the use for which they were hired, and in this respect they did not afterwards fail. The shaft kept its place, performing its revolutions, and in no respect proved inadequate to the service required of it. If alterations were required to fit the premises for their safe or